Personal Bankruptcy Laws For Dummies
Book image
Explore Book Buy On Amazon

If you're thinking about personal bankruptcy, you're looking at some hard questions and harder choices, especially under the newest bankruptcy law. Answer the questions in the following list to figure out whether you should consider bankruptcy and what type:

  1. Can you pay off your debts (except mortgages) within three years while maintaining an objectively tolerable standard of living?

    YES: Congratulations! You're probably on fairly solid financial footing.

    NO: Consider bankruptcy. Depending on your circumstances, your options may be

    1. Chapter 7, in which many of your debts are forgiven immediately and you surrender nonexempt property (96 percent of filers don't lose any of their assets).

    2. Chapter 13, where you pay a portion of your debts over three to five years.

  2. Is your median income greater than the median income for your state?

    YES: Your repayment plan must run for five years if you go the Chapter 13 route. Your Chapter 7 may be dismissed if your debts are primarily consumer debts and you flunk the Means Test (see Step 5).

    NO: You automatically pass the Means Test. If you choose Chapter 13, your repayment plan can span only three years. The five-year repayment plan is not required (meaning that you're not get stuck committing all of your disposable income to a repayment plan for five years).

  3. Do you have nonexempt property that you want to keep? Do you need time to catch up on your mortgage? Do you owe taxes or support obligations that you want to pay off over time without being hassled?

    It varies by state, but generally homesteads, pensions, cars, and household goods are exempt.

    YES: Consider Chapter 13 bankruptcy. If your income is greater than the median, you have to pay for five years. Otherwise, a three-plan is an option.

    NO: Consider Chapter 7 bankruptcy.

  4. Are your debts primarily consumer debts and your income greater than the median?

    YES: Take the Means Test, outlined in Step 5.

    NO: Choose either Chapter 7 or Chapter 13 — whichever is more beneficial to you. See Chapter 4.

  5. Do you pass the Means Test?

    Deduct the following monthly expenses from your gross monthly income:

    1. IRS living, housing, and transportation expenses (excluding mortgage and car payments)

    2. Mandatory payroll deductions (taxes, FICA, and repayments on pension loan) and future support obligations

    3. Health insurance premiums

    4. Debt payments, such as regular mortgage and car payments, 1/60 of past due mortgage and car payments, and 1/60 of past due support obligations

  6. Is the difference between your monthly expenses and gross monthly income less than $100? (If the difference is more, proceed to Step 7.)

    YES: You pass the Means Test and may choose between Chapter 7 and Chapter 13.

    NO: You may be restricted to Chapter 13.

  7. Is the difference between your monthly expenses and gross monthly income between $100 and $166.66 per month and less than 25 percent of your unsecured nonpriority debts (regular obligations such as credit cards and medical bills divided by 60)?

    YES: You pass the Means Test.

    NO: You're limited to Chapter 13.

  8. Is the difference between your monthly expenses and gross monthly income more than $166.67 per month?

    YES: You're limited to Chapter 13.

    NO: Choose between Chapter 7 or Chapter 13 — whichever is more beneficial to you.

About This Article

This article is from the book:

About the book authors:

James P. Caher, a practicing attorney with 30 years of experience, is a nationally recognized expert on consumer bankruptcies and authority on the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005.
Jim coauthored, with his brother John, Debt Free! Your Guide to Personal Bankruptcy Without Shame (Henry Holt, 1996) and two highly regarded books for lawyers: Discharging Marital Obligations in Bankruptcy (LRP, 1997) and Discharging Credit Card Debts in Bankruptcy (LRP, 1998).
In addition, Jim has published scores of articles for bankruptcy professionals and is frequently called upon to analyze and interpret the complicated provisions of the 2005 bankruptcy law. He was labeled the “online guru” by a national legal weekly because of his regular appearances on the Internet as an expert analyst on bankruptcy law. Jim also serves on the editorial board of the American Bankruptcy Institute.
Jim graduated from Niagara University and then earned his law degree from Memphis State University Law School, where he was a member of the Law Review and recipient of the American Jurisprudence Award for Excellence in the field of debtor-creditor relations. He filed his first consumer bankruptcy case shortly after graduating in 1975. Jim lives and practices in Eugene, Oregon.

John M. Caher is a legal journalist who has written about law and the courts for most of his 25-year career.
Currently the Albany bureau chief for the New York Law Journal, John previously was state editor and legal affairs reporter for the Times Union of Albany, New York. His legal reportage has won more than two dozen awards, including prestigious honors from the American Bar Association, the New York State Bar Association, the Erie County Bar Association, and the Associated Press.
John coauthored, with his brother Jim, Debt Free! Your Guide to Personal Bankruptcy Without Shame (Henry Holt, 1996). He is the author of King of the Mountain: The Rise, Fall and Redemption of Chief Judge Sol Wachtler (Prometheus Books, 1998). In addition, John was the principal writer assisting former U.S. Treasury Secretary William E. Simon in preparation of his memoirs. Mr. Simon’s autobiography, A Time for Reflection, was published in 2003 by Regnery.
John is a 1980 graduate of Utica College of Syracuse University, where he received his bachelor’s degree in journalism, and a 1993 graduate of Rensselaer Polytechnic Institute, where he earned a master’s degree in technical communications/graphics. John lives in Clifton Park, New York.

This article can be found in the category: